Citation Nr: 0710054
Decision Date: 04/06/07 Archive Date: 04/16/07
DOCKET NO. 05-23 914 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Whether the appellant is basically eligible for
Department of Veterans Affairs (VA) nonservice-connected
death pension benefits.
ATTORNEY FOR THE BOARD
H. E. Costas, Associate Counsel
INTRODUCTION
The veteran has recognized guerilla service from March 1945
to March 1946. The veteran died in December 1998. The
appellant is the veteran's surviving spouse.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from October 1999, January 2002, and March
2003 rating decisions of the Department of Veteran's Affairs
(VA) Regional Office (RO) in Manila, the Republic of the
Philippines. The January 1999 rating denied the appellant's
claim of entitlement to death benefits based on the well
grounded standard. The RO revisited the matters in January
2002 and March 2003 due to the enactment of the Veterans
Claims Assistance Act of 2000 (VCAA).
FINDINGS OF FACT
1. The veteran died in December 1998 from cardiopulmonary
arrest due to old age.
2. At the time of the veteran's death, service connection
was in effect for right eye defective vision and scars on the
right side of the forehead and left side of the face.
3. The record contains no indication that the veteran's
death was proximately due to or the result of his period of
service, or a service-connected disease or injury.
4. The service department has certified that the veteran had
recognized guerilla service from March 1945 to March 1946.
CONCLUSIONS OF LAW
1. A service-connected disability did not cause or
contribute substantially or materially to cause death, nor
may it be so presumed. 38 U.S.C.A. §§ 1110, 1112, 1113, 1310
(West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2006).
2. The veteran's period of service does not meet the basic
service eligibility requirements to entitle the appellant to
VA nonservice-connected death pension benefits. 38 U.S.C.A.
§§ 101, 107, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.40, 3.41,
3.203 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Before assessing the merits of the appeal, VA's duties under
the Veterans Claims Assistance Act of 2000 (VCAA), 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126, and 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), are examined.
First, VA has a duty to indicate which portion of information
should be provided by the claimant, and which portion VA will
try to obtain on the claimant's behalf, which was
accomplished by January 2001 and July 2004 letters.
During the pendency of this appeal, the Court issued a
decision in the consolidated appeal of Dingess/Hartman v.
Nicholson 19 Vet. App. 473 (2006), which held that the VCAA
notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) apply to all five elements of a service connection
claim. Those five elements include: 1) veteran status; 2)
existence of a disability; 3) a connection between the
veteran's service and the disability; 4) degree of
disability; and 5) effective date of the disability. The
Court held that upon receipt of an application for a claim of
service connection, 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. Id. at 484.
Despite any inadequate notice provided to the appellant, no
prejudice results in proceeding with the issuance of a final
decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993)
(where the Board addresses a question that has not been
addressed by the agency of original jurisdiction, the Board
must consider whether the appellant has been prejudiced
thereby). Particularly, the veteran has been afforded the
information necessary to advance any contention by means of
the January 2001 and July 2004 letters. As such, the veteran
was aware and effectively notified of information and
evidence needed to substantiate and complete his claims.
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002).
Because a preponderance of the evidence is against the
claims, any potentially contested issue regarding a
downstream element is rendered moot. Again, the veteran is
not prejudiced by the Board's consideration of the pending
issues.
The Court in Pelegrini v. Principi, 18 Vet. App. 112 (2004),
continued to recognize that typically a VCAA notice, as
required by 38 U.S.C.A. § 5103(a), must be provided to a
claimant before the initial unfavorable agency of original
jurisdiction decision on a claim for VA benefits. In this
case, the record contains February 2005 and May 2005
statements of the case and a July 2005 supplemental statement
of the case following the July 2003 letter. See Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (holding that a
timing error can be cured when VA employs proper subsequent
process).
It is further noted that in order to be consistent with
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), a VCAA notice
must also request or tell the claimant to provide any
evidence in the claimant's possession that pertains to the
claim. 38 C.F.R. § 3.159(b)(1). See Pelegrini, 18 Vet.
App. at 121. In this case, this principle has been fulfilled
by the July 2003 letter.
Next, VCAA requires VA to assist the claimant in obtaining
evidence necessary to substantiate a claim, 38 C.F.R.
§ 3.159(c), which includes providing a medical examination
when such is necessary to make a decision on the claim. The
record contains the veteran's available service medical
records, private treatment records from Santa Lucia District
Hospital, Antonia Quismorio, M.D., Lorma Medical Center, and
Veterans Memorial Medical Center. Notably, the appellant
submitted, in August 2005, that she had no further
outstanding or relevant evidence to submit.
Based on the foregoing, VA satisfied its duties to the
veteran.
Analysis
A. Cause of Death
Dependency and indemnity compensation may be awarded to a
surviving spouse upon the service-connected death of the
veteran, with service connection determined according to the
standards applicable to disability compensation. 38 U.S.C.A.
§ 1310 (West 2002); 38 C.F.R. § 3.5(a) (2006); see 38
U.S.C.A. Chapter 11. Service connection may be demonstrated
either by showing direct service incurrence or aggravation,
or by use of applicable presumptions, if available. 38
C.F.R. § 3.303(a); Combee v. Brown, 34 F.3d 1039, 1043 (Fed.
Cir. 1994).
Generally, a veteran's death is service connected if the
death resulted from a disability incurred or aggravated in
line of duty in the active military, naval, or air service.
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2006).
The disability may be either the principal or a contributory
cause of death. 38 C.F.R. § 3.312(a). A disability is the
principal cause of death if it was the immediate or
underlying cause of death, or was etiologically related to
the death. 38 C.F.R. § 3.312(b). A disability is a
contributory cause of death if it contributed substantially
or materially to the cause of death, combined to cause death,
aided or lent assistance to producing death. 38 C.F.R. §
3.312(c).
Where a veteran served 90 days or more during a period of war
and certain chronic diseases, become manifest to a degree of
10 percent within one year from date of termination of such
service, such disease shall be presumed to have been incurred
in service even though there is no evidence of such disease
during the period of service. This presumption is rebuttable
by affirmative evidence to the contrary. 38 U.S.C.A. §§
1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
Under applicable criteria, VA shall consider all lay and
medical evidence of record in a case with respect to benefits
under laws administered by VA. When there is an approximate
balance of positive and negative evidence regarding any issue
material to the determination of a matter, the Secretary
shall give the benefit of the doubt to the claimant. 38
U.S.C.A. § 5107(b) (West 2002); see Gilbert v. Derwinski, 1
Vet. App. 49, 55 (1990) (a claimant need only demonstrate
that there is an "approximate balance of positive and
negative evidence" in order to prevail).
As set forth above, to establish service connection for the
cause of the veteran's death, the evidence must show that a
service-connected disability either caused or contributed
substantially or materially to cause death. 38 U.S.C.A. §
1310; 38 C.F.R. § 3.312. In this case, the cause of the
veteran's death is listed as cardiopulmonary arrest due to
old age. At the time of his death, service connection was in
effect for right eye defective vision and for scars on the
right side of the forehead and left side of the face.
The appellant alleges that the veteran's cause of death is
related to his service-connected disabilities. The record
contains no evidence that the veteran's cardiopulmonary
arrest was related to his period of service. Rather, the
certificate of death attributes the veteran's cause of death
to his advanced age. Moreover, post-service medical evidence
demonstrates no complaints or diagnosis of a cardiopulmonary
disorder until many years after the veteran's period of
service. Treatment records from Veterans Memorial Medical
Center indicate that the veteran was hospitalized July 1981
due to arteriosclerotic heart disease and congestive heart
failure. Treatment records from Dr. Quismorio indicated that
he saw the veteran in August 1998 and diagnosed him as having
cardiac dysrhythmia in failure, arteriosclerotic heart
disease, aortic stenosis and benign prostatic hypertrophy.
Additional notes indicate that he also diagnosed the veteran
as having chronic obstructive pulmonary disease and advised
the veteran to quit smoking. In August 1998, the veteran was
hospitalized at Lorma Medical Center due to multichamber
heart enlargement, cor pulmonale with left ventricle failure,
and alcoholic cardiomyopathy. Treatment records from Santa
Lucia District Hospital demonstrate that the veteran was
hospitalized in October 1998 due to pneumonia with congestive
heart failure. There is no additional post-service medical
evidence of record. Moreover, the appellant indicated in
August 2005 that she had no additional information to submit.
The medical evidence of record does not contain any medical
opinion that a cardiovascular and/or pulmonary disorder,
first noted many years after the veteran's separation from
active service, was related to such service. Furthermore,
the veteran died more than fifty years after discharge, and
the remoteness of the event from the incidence of service
does not lend support to the claim that he died as a result
of complications of his service-connected disabilities, or
from an in-service disease or injury. The lack of medical
evidence during those fifty years further weighs against the
claim.
The Board finds that no competent medical evidence has been
submitted which establishes a relationship between the cause
of the veteran's death and his period of service. The
appellant's opinions, offered without the benefit of medical
training or expertise, is not competent evidence required to
determine an etiologic relationship between the cause of the
veteran's death and service. Grottveit, 5 Vet. App. at 93;
Espiritu, 2 Vet. App. at 494.
There is simply no competent evidence linking the cause of
the veteran's death to his period of active duty service.
Accordingly, the Board finds that the preponderance of the
evidence is against service connection for the cause of the
veteran's death. 38 U.S.C.A. §§ 1110, 1310, 5107(b); 38
C.F.R. §§ 3.5, 3.102, 3.303, 3.312. As the preponderance of
the evidence is against the claim, the benefit of the doubt
doctrine is inapplicable. See Gilbert, 1 Vet. App. at 55.
B. Nonservice-connected death pension
The appellant claims that the military service of her spouse
meets the requirements for eligibility for VA benefits on the
basis that he was a "veteran."
The provisions of 38 U.S.C.A. §§ 1310 to 1318, pertaining to
dependency and indemnity compensation benefits, and 38
U.S.C.A. § 1542, pertaining to death pension benefits,
require that the deceased person shall have been a veteran.
The term "veteran" means a person who served in the active
military, naval, or air service, and who was discharged or
released therefrom under conditions other than dishonorable.
38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).
Service in the Philippine Scouts and in the organized
military forces of the Government of the Commonwealth of the
Philippines, including recognized guerrilla service, is
recognized service for certain VA purposes, as authorized by
38 U.S.C.A. § 107 (West 2002); 38 C.F.R. § 3.40.
Service of persons enlisted under section 14 of Public Law
No. 190, 79th Congress (Act of October 6, 1945), is included
for compensation and dependency and indemnity compensation,
but not for death pension benefits. All enlistments and
reenlistments of Philippine Scouts in the Regular Army
between October 6, 1945, and June 30, 1947, inclusive, were
made under the provisions of Public Law No. 190, as it
constituted the sole authority for such enlistments during
that period. This paragraph does not apply to officers who
were commissioned in connection with the administration of
Public Law No. 190. 38 C.F.R. § 3.40(b) (2004).
Service as a Philippine Scout in the Regular Army inducted
between October 6, 1945, and June 30, 1947, inclusive, and in
the Commonwealth Army of the Philippines from and after the
dates and hours when called into service of the Armed Forces
of the United States by orders issued from time to time by
the General Officer, U.S. Army, pursuant to the Military
Order of the President of the United States dated July 26,
1941, is included for compensation benefits, but not for
death pension benefits. Service department certified
recognized guerrilla service and unrecognized guerrilla
service under a recognized commissioned officer, only if the
person was a former member of the United States Armed Forces
(including the Philippine Scouts), or the Commonwealth Army,
prior to July 1, 1946, is included for compensation benefits,
but not for death pension benefits. 38 C.F.R. § 3.40(b),
(c), and (d).
Service before July 1, 1946, in the organized military forces
of the Government of the Commonwealth of the Philippines,
while such forces were in the service of the Armed Forces of
the United States pursuant to the military order of the
President dated July 26, 1941, including among such military
forces organized guerrilla forces under commanders appointed,
designated, or subsequently recognized by the Commander in
Chief, Southwest Pacific Area, or other competent authority
in the Army of the United States, shall not be deemed to have
been active military, naval, or air service for the purposes
of any law of the United States conferring rights,
privileges, or benefits upon any person by reason of the
service of such person or the service of any other person in
the Armed Forces, except for specified benefits including
disability compensation benefits authorized by chapter 11,
title 38, United States Code. 38 U.S.C.A. § 107(a); 38
C.F.R. §§ 3.40, 3.41. These specified benefits do not
include nonservice-connected death pension benefits
authorized by Chapter 15, Title 38, United States Code.
For the purpose of establishing entitlement to pension,
compensation, dependency and indemnity compensation or burial
benefits, VA may accept evidence of service submitted by a
claimant, such as a DD Form 214, Certificate of Release or
Discharge from Active Duty, or original Certificate of
Discharge, without verification from the appropriate service
department if the evidence meets the following conditions:
(1) the evidence is a document issued by the service
department, (2) the document contains needed information as
to length, time and character of service; and (3) in the
opinion of the VA the document is genuine and the information
contained in it is accurate. 38 C.F.R. § 3.203(a) (2006).
With respect to documents submitted to establish a creditable
period of wartime service for death pension entitlement, a
document may be accepted without verification if the document
shows (1) service of four months or more, or (2) discharge
for disability incurred in the line of duty, or (3) 90 days
creditable service based on records from the service
department such as hospitalization for ninety days for a line
of duty disability. 38 C.F.R. § 3.203(b) (2006). When the
claimant does not submit evidence of service or the evidence
submitted does not meet the requirements discussed above, the
VA shall request verification of service from the service
department. 38 C.F.R. § 3.203(c) (2006).
The Court has held that "VA is prohibited from finding, on
any basis other than a service department document, which VA
believes to be authentic and accurate, or service department
verification, that a particular individual served in the U.S.
Armed Forces." Duro v. Derwinski, 2 Vet. App. 530, 532
(1992). In addition, "service department findings are
binding on the VA for purposes of establishing service in the
U.S. Armed Forces." Id.; see also Dacoron v. Brown, 4 Vet.
App. 115, 120 (1993).
The facts in this case are not in dispute. The service
department has certified that the appellant had recognized
guerilla service from March 1945 to March 1946.
As noted, the findings of the service department verifying a
person's service are binding on VA for purposes of
establishing service in the United States Armed Forces.
Venturella v. Gober, 10 Vet. App. 340 (1997). Based on the
dates of service certified by the service department, the
appellant does not have the requisite service to qualify her
for VA nonservice-connected death pension benefits.
Persons with service in the Philippine Commonwealth Army,
USAFFE (U.S. Armed Forces, Far East), including the
recognized guerrillas, or service with the New Philippine
Scouts shall not be deemed to have been in active military
service with the Armed Forces of the United States for the
purpose of establishing entitlement to nonservice-connected
death pension benefits. See 38 U.S.C.A. § 107; 38 C.F.R. §
3.40(b), (c), (d). Therefore, the Board finds that the
appellant is not eligible for the requested benefit.
The Board has carefully reviewed the entire record in this
case; however, this is a case in which the law is
dispositive; basic eligibility for death pension is precluded
based on the decedent's service. Therefore, the appeal must
be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994).
(CONTINUED ON NEXT PAGE)
ORDER
Entitlement to service connection for the cause of the
veteran's death is denied.
Basic eligibility for VA nonservice-connected death pension
benefits is denied.
____________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs